A private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech. Nor does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication. The selection of contingents to make a parade is entitled to similar protection.
Petitioner South Boston Allied War Veterans Council, an unincorporated association of individuals elected from various veterans groups, was authorized by the city of Boston to organize and conduct the St. Patrick's Day-Evacuation Day Parade. The Council refused a place in the 1993 event to respondent Gay, *** and Bisexual Group of Boston (GLIB), an organization formed for the purpose of marching in the parade in order to express its members' pride in their Irish heritage as openly gay, ***, and bisexual individuals, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York St. Patrick's Day parade. GLIB and some of its members filed a suit in state court, alleging that the denial of their application to march violated a state law prohibiting discrimination on account of sexual orientation in places of public accommodation. In finding such a violation and ordering the Council to include GLIB in the parade, the trial court, among other things, concluded that the parade had no common theme other than the involvement of the participants, and that, given the Council's lack of selectivity in choosing parade participants and its failure to circumscribe the marchers' messages, the parade lacked any expressive purpose, such that GLIB's inclusion therein would not violate the Council's First Amendment rights. The Supreme Judicial Court of Massachusetts affirmed. The petitioner thereafter appealed.
Did requiring the Council to include the GLIB in the St. Patrick's Day Parade violate the Council’s rights under the First Amendment?
The Court held that the state courts' application of the public accommodations statute to require the petitioner to include the respondent organization among the marchers in the parade violated the petitioner's rights under the First Amendment's free speech guarantee. According to the Court, by denying the respondent's application to take part in the parade, the petitioner had decided to exclude a message which was not in accordance with the message the petitioner chose to make. The Court held that the application of the public accommodations statute produced an order essentially requiring the petitioner to alter the expressive content of the parade, and as such, it violated the fundamental First Amendment rule that a speaker has the autonomy to choose the content of the speaker's own message. The Court further noted that the respondent organization presumably would have had a fair opportunity to obtain a parade permit of its own; thus, it had not been shown that the petitioner had the capacity to silence the voice of competing speakers.